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Registration No. 333-_______________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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APPLIED ANALYTICAL INDUSTRIES, INC.
(Exact name of registrant, as specified in its charter)
DELAWARE 04-2687849
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5051 New Centre Drive
Wilmington, North Carolina 28403
(Address of principal executive officers)
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APPLIED ANALYTICAL INDUSTRIES, INC.
1996 STOCK OPTION PLAN
(Full title of the plan)
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R. FORREST WALDON
Executive Vice President and General Counsel
Applied Analytical Industries, Inc.
5051 New Centre Drive
Wilmington, North Carolina 28403
(Name and address of agent for service)
(910) 392-1606
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per unit offering price registration fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 495,627 $13.5625(1) $6,721,941.19(1) $1,983
(including options under the
Applied Analytical Industries,
Inc. 1996 Stock Option Plan)
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</TABLE>
(1) In accordance with Rule 457(h)(1) of Regulation C, the price for the
shares is computed on the basis of the average high and low prices for
Common Shares on April 21, 1997 as reported on the NASDAQ National
Market System.
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PART II INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into
this registration statement:
(a) The Company's Annual Report on Form 10-K filed with the
Securities and Exchange Commission for fiscal year ended December 31, 1997 and
the Company's Amendment No. 1 on Form 10-K/A to the Annual Report on Form 10-K
for the fiscal year ended December 31, 1997;
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 since the end of the such fiscal year;
and
(c) The description of securities contained in the
Corporation's registration statement filed under the Securities Exchange Act of
1934 on Form 8-A, (SEC Registration No. 0-21185), including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment indicating that all securities offered by this
registration statement have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into the
registration statement and to be part thereof from the date of filing of such
documents.
Item 6. Indemnification of Directors and Officers.
The Company's Restated Certificate of Incorporation (the "Restated
Certificate of Incorporation") provides that no director of the Company shall be
personally liable for any monetary damages for any breach of fiduciary duty as a
director, except to the extent that the Delaware General Corporation Law
prohibits elimination or limitation of liability of directors for breach of
fiduciary duty. The Restated Certificate of Incorporation provides that a
director or officer of the Company (a) shall be indemnified by the Company
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the Company) brought
against him by virtue of his position as a director or officer of the Company if
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful and (b) shall be indemnified by the Company against all expenses
(including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Company brought against him
by virtue of his position as a director or officer of the Company if he acted in
good faith
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and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Company, except that no indemnification shall be made with
respect to any matter as to which such person shall have been adjudged to be
liable to the Company, unless a court determines that, despite such adjudication
but in view of all of the circumstances, he is entitled to indemnification of
such expenses. Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, he is required to be
indemnified by the Company against all expenses (including attorneys' fees)
incurred in connection therewith. Expenses shall be advanced to a director or
officer at his request, provided that he undertakes to repay the amount advanced
if it is ultimately determined that he is not entitled to indemnification for
such expenses.
Indemnification is required to be made unless the Company determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the Company that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Company fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the Company
notice of the action for which indemnity is sought and the Company has the right
to participate in such action or assume the defense thereof.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and in any criminal proceeding, if such person had
no reasonable cause to believe his conduct was unlawful; provided that, in the
case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Item 8. Exhibits.
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<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 Applied Analytical Industries, Inc. 1996 Stock Option Plan
(incorporated by reference to Exhibit 10.4 to the Company's
registration statement on Form S-1, SEC Registration No.
333-5535)
4.2 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Quarterly Report on Form 10-Q for the period ended
</TABLE>
2
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<TABLE>
<S> <C>
September 30, 1996)
4.3 Restated By-laws of the Company (incorporated by reference to
Exhibit 3.2 of the Company's registration statement on Form
S-1, SEC Registration No. 333-5535)
5 Opinion of Robinson, Bradshaw & Hinson, P.A.
23.1 Consent of Robinson, Bradshaw & Hinson, P.A. (contained in
Exhibit 5)
23.2 Consent of Price Waterhouse LLP
24.1 Power of Attorney of Frederick D. Sancilio, dated May 12, 1997
24.2 Power of Attorney of William H. Underwood, dated May 12, 1997
24.3 Power of Attorney of Joseph H. Gleberman, dated May 12, 1997
24.4 Power of Attorney of John M. Ryan, dated May 12, 1997
24.5 Power of Attorney of James L. Waters, dated May 12, 1997
</TABLE>
Item 9. Undertakings.
The Company hereby undertakes as follows:
(1) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment to this registration statement
involving a fundamental change in the information set forth in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof;
(2) The Company shall remove from registration by means of a
post-effective amendment any of the securities being registered that remain
unsold at the termination of the offering;
(3) For purposes of determining any liability under the Securities Act
of 1933, each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in such Act and is, therefore,
3
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unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
4
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SIGNATURES
Pursuant to the requirements of the 1933 Act, the Company
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wilmington, State of North Carolina on April 23,
1998.
APPLIED ANALYTICAL INDUSTRIES, INC.
By: /s/ EUGENE T. HALEY
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Eugene T. Haley
Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
FREDERICK D. SANCILIO* President and Director April 23, 1998
- ------------------------------------------ (Principal Executive
Frederick D. Sancilio, Ph.D. Officer)
/s/ EUGENE T. HALEY Executive Vice President and April 23, 1998
- ------------------------------------------ Chief Financial Officer
Eugene T. Haley (Principal Financial Officer)
/s/ STEPHEN F. RIZZO Vice President and April 23, 1998
- ------------------------------------------ Controller (Principal
Stephen F. Rizzo Accounting Officer)
WILLIAM H. UNDERWOOD* Executive Vice President April 23, 1998
- ------------------------------------------ and Director
William H. Underwood
JOSEPH H. GLEBERMAN* Director April 23, 1998
- ------------------------------------------
Joseph H. Gleberman
JOHN M. RYAN* Director April 23, 1998
- ------------------------------------------
John M. Ryan
JAMES L. WATERS* Director April 23, 1998
- ------------------------------------------
James L. Waters
*By: /s/ ALBERT N. CAVAGNARO
- ------------------------------------------
(Albert N. Cavagnaro, Attorney-in-Fact)
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 Applied Analytical Industries, Inc. 1996 Stock Option Plan
(incorporated by reference to Exhibit 10.4 to the Company's
registration statement on Form S-1, SEC Registration No.
333-5535)
4.2 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Quarterly Report on Form 10-Q for the period ended September
30, 1996)
4.3 Restated By-laws of the Company (incorporated by reference to
Exhibit 3.2 of the Company's registration statement on Form
S-1, SEC Registration No. 333-5535)
5 Opinion of Robinson, Bradshaw & Hinson, P.A.
23.1 Consent of Robinson, Bradshaw & Hinson, P.A. (contained in
Exhibit 5)
23.2 Consent of Price Waterhouse LLP
24.1 Power of Attorney of Frederick D. Sancilio, dated May 12, 1997
24.2 Power of Attorney of William H. Underwood, dated May 12, 1997
24.3 Power of Attorney of Joseph H. Gleberman, dated May 12, 1997
24.4 Power of Attorney of John M. Ryan, dated May 12, 1997
24.5 Power of Attorney of James L. Waters, dated May 12, 1997
</TABLE>
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EXHIBIT 5
ROBINSON, BRADSHAW & HINSON, P.A.
ATTORNEYS AT LAW
<TABLE>
<S> <C> <C>
SOUTH CAROLINA OFFICE
STEPHEN M. LYNCH 101 NORTH TRYON STREET, SUITE 1900 THE GUARDIAN BUILDING
TELEPHONE (704) 377-8355 CHARLOTTE, NORTH CAROLINA 28246 ONE LAW PLACE - SUITE 600
FAX (704) 373-3955 TELEPHONE (704) 377-2536 P.O. DRAWER 12070
INTERNET [email protected] FAX (704) 378-4000 ROCK HILL, S.C. 29731
TELEPHONE (803) 325-2900
FAX (803) 325-2929
</TABLE>
April 23, 1998
Applied Analytical Industries, Inc.
5051 New Centre Drive
Wilmington, North Carolina 28403
Attention: R. Forrest Waldon
Re: Registration Statement on Form S-8 of Applied Analytical Industries,
Inc. 1996 Stock Option Plan
Ladies and Gentlemen:
We have served as counsel to Applied Analytical Industries, Inc. (the
"Company") in connection with the preparation by the Company of a registration
statement on Form S-8 (the "Registration Statement") for filing with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to the offer and sale of up to 495,627 shares of the Company's common
stock, $.001 par value per share (the "Shares"), to be issued pursuant to the
Company's 1996 Stock Option Plan (the "Plan"), and the related options issued
under the Plan.
We have examined the Restated Certificate of Incorporation filed with
the Office of the Secretary of State of the State of Delaware on September 20,
1996 and the Restated By-laws of the Company (collectively, the "Charter and
Bylaws"), corporate proceedings relating to the authorization, issuance and sale
of the Shares, and such other documents and records as we have deemed necessary
in order to enable us to render this opinion.
Based upon the foregoing, and subject to the conditions set forth
below, we are of the opinion that:
(i) The Company is a corporation duly incorporated and validly
existing under the laws of the State of Delaware; and
(ii) The Shares, when issued and sold by the Company pursuant to
the terms and conditions of the Plan, will be legally issued,
fully paid and non-assessable, and will represent validly
authorized and outstanding shares of the common stock of the
Company.
We have assumed that the Company and those officers and employees that
may receive options to purchase Shares under the Plan will have complied with
the relevant requirements of the Plan and that all prescribed filings with
regulatory authorities, including any stock exchanges having jurisdiction, will
<PAGE> 2
Applied Analytical Industries, Inc.
April 23, 1998
Page 2
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be effected in accordance with their respective requirements and that the
approvals of such regulatory authorities, including any stock exchanges having
jurisdiction, will have been granted prior to the issuance of any of the Shares.
The opinions expressed herein are contingent upon the Registration
Statement, as amended, becoming effective under the Securities Act of 1933 and
the Charter and Bylaws not being further amended prior to the issuance of the
Shares.
We hereby consent to the filing of a copy of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
ROBINSON, BRADSHAW & HINSON, P.A.
/s/ Stephen M. Lynch
Stephen M. Lynch
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 18, 1998, appearing in the 1997
Annual Report to Shareholders of Applied Analytical Industries, Inc., which is
incorporated by reference in Applied Analytical Industries, Inc.'s Annual
Report on Form 10-K, as amended, for the year ended December 31, 1997. We also
consent to the incorporation by reference of our report on the Financial
Statement Schedule, which appears in such Annual Report on Form 10-K, as
amended.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Raleigh, North Carolina
April 21, 1998
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
THE UNDERSIGNED director of Applied Analytical Industries, Inc. (the
"Company") hereby appoints Mark P. Colonnese, R. Forrest Waldon, Stephen F.
Rizzo and Albert N. Cavagnaro and each of them singly, as the undersigned's
lawful agent and attorney-in-fact, with full power of substitution and
resubstitution, for and on behalf and in the name of the undersigned, to execute
and file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-8 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering options to purchase 495,627
shares to be issued upon the exercise of options issued under the Company's 1996
Stock Option Plan, and any and all amendments, including post-effective
amendments, and exhibits to such registration statement, and any and all
applications or other documents to be filed with the Commission or otherwise
pertaining to such registration statement or amendments, with full power and
authority to take or cause to be taken all other actions that in the judgment of
such appointed person(s) may be necessary or appropriate to effect the
registration under the Act of such options.
EXECUTED on the 12th day of May, 1997.
/s/ Frederick D. Sancilio, Ph.D.
--------------------------------
Frederick D. Sancilio, Ph.D.
<PAGE> 1
EXHIBIT 24.2
POWER OF ATTORNEY
THE UNDERSIGNED director of Applied Analytical Industries, Inc. (the
"Company") hereby appoints Mark P. Colonnese, R. Forrest Waldon, Stephen F.
Rizzo and Albert N. Cavagnaro and each of them singly, as the undersigned's
lawful agent and attorney-in-fact, with full power of substitution and
resubstitution, for and on behalf and in the name of the undersigned, to execute
and file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-8 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering options to purchase 495,627
shares to be issued upon the exercise of options issued under the Company's 1996
Stock Option Plan, and any and all amendments, including post-effective
amendments, and exhibits to such registration statement, and any and all
applications or other documents to be filed with the Commission or otherwise
pertaining to such registration statement or amendments, with full power and
authority to take or cause to be taken all other actions that in the judgment of
such appointed person(s) may be necessary or appropriate to effect the
registration under the Act of such options.
EXECUTED on the 12th day of May, 1997.
/s/ William H. Underwood
------------------------
William H. Underwood
<PAGE> 1
EXHIBIT 24.3
POWER OF ATTORNEY
THE UNDERSIGNED director of Applied Analytical Industries, Inc. (the
"Company") hereby appoints Mark P. Colonnese, R. Forrest Waldon, Stephen F.
Rizzo and Albert N. Cavagnaro and each of them singly, as the undersigned's
lawful agent and attorney-in-fact, with full power of substitution and
resubstitution, for and on behalf and in the name of the undersigned, to execute
and file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-8 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering options to purchase 495,627
shares to be issued upon the exercise of options issued under the Company's 1996
Stock Option Plan, and any and all amendments, including post-effective
amendments, and exhibits to such registration statement, and any and all
applications or other documents to be filed with the Commission or otherwise
pertaining to such registration statement or amendments, with full power and
authority to take or cause to be taken all other actions that in the judgment of
such appointed person(s) may be necessary or appropriate to effect the
registration under the Act of such options.
EXECUTED on the 12th day of May, 1997.
/s/ Joseph H. Gleberman
-----------------------
Joseph H. Gleberman
<PAGE> 1
EXHIBIT 24.4
POWER OF ATTORNEY
THE UNDERSIGNED director of Applied Analytical Industries, Inc. (the
"Company") hereby appoints Mark P. Colonnese, R. Forrest Waldon, Stephen F.
Rizzo and Albert N. Cavagnaro and each of them singly, as the undersigned's
lawful agent and attorney-in-fact, with full power of substitution and
resubstitution, for and on behalf and in the name of the undersigned, to execute
and file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-8 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering options to purchase 495,627
shares to be issued upon the exercise of options issued under the Company's 1996
Stock Option Plan, and any and all amendments, including post-effective
amendments, and exhibits to such registration statement, and any and all
applications or other documents to be filed with the Commission or otherwise
pertaining to such registration statement or amendments, with full power and
authority to take or cause to be taken all other actions that in the judgment of
such appointed person(s) may be necessary or appropriate to effect the
registration under the Act of such options.
EXECUTED on the 12th day of May, 1997.
/s/ John M. Ryan
----------------
John M. Ryan
<PAGE> 1
EXHIBIT 24.5
POWER OF ATTORNEY
THE UNDERSIGNED director of Applied Analytical Industries, Inc. (the
"Company") hereby appoints Mark P. Colonnese, R. Forrest Waldon, Stephen F.
Rizzo and Albert N. Cavagnaro and each of them singly, as the undersigned's
lawful agent and attorney-in-fact, with full power of substitution and
resubstitution, for and on behalf and in the name of the undersigned, to execute
and file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-8 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering options to purchase 495,627
shares to be issued upon the exercise of options issued under the Company's 1996
Stock Option Plan, and any and all amendments, including post-effective
amendments, and exhibits to such registration statement, and any and all
applications or other documents to be filed with the Commission or otherwise
pertaining to such registration statement or amendments, with full power and
authority to take or cause to be taken all other actions that in the judgment of
such appointed person(s) may be necessary or appropriate to effect the
registration under the Act of such options.
EXECUTED on the 12th day of May, 1997.
/s/ James L. Waters
-------------------
James L. Waters
